Comment: Nicholas Somers, FNAVA. FRSA.
If an expert witness has undertaken their
forensic report with due diligence and has adhered to the Civil
Procedure Rules (CPR), Part 35, then I think it is unlikely that
the expert will have anything to fear.
The majority of the expert witnesses I have
come across when undertaking art- and antiques-related cases have
acted in a very professional manner. However, in a number of cases
the other side's expert has undertaken a case in a way that might
now easily leave themselves open to being sued.
Some specialists who take on expert witness
work may be very knowledgeable about their own subject, but some, I
find, have little or no understanding of CPR, particularly that an
expert's overriding duty is to the court and that this duty
overrides any obligation to the person from whom the expert has
received instructions or by whom they are paid.
An expert witness's report must be
independent, objective and unbiased. It should be prepared for the
purpose of assisting the judge and the court and at no time should
the expert assume the role of an advocate.
Therefore, a claim might arise in the
following areas if not addressed properly:-
• Undertaking a case which is not within
their expertise.
• Failing to report a conflict of
interests.
• Failing to undertake proper research.
• Failing to consider all material facts,
including those which might detract from their opinions.
• Failing to immediately notify all the
parties when, after producing a report, an expert's view changes on
any material matter.
• Providing only evidence that favours the
party who has instructed the expert.
The court will often direct that there
should be a meeting of experts. This meeting is to assist the court
in understanding where the experts agree and/or disagree. Therefore
it is possible that a claim for negligence might arise if a case is
lost because:
• an expert is found to be 'bullying' or
bringing undue pressure to bear on another expert;
• an expert is found to have shifted his
position purely to obtain a concession from the other expert;
• an expert is found to have turned the
meeting into a negotiation rather than a discussion;
• an expert fails to keep a record of
exactly what has been agreed and what has not been agreed;
• an expert fails to sign a copy of the
joint statement following the discussions.
I think it also possible (but unlikely) that
an expert might in the future face a potential claim if it could be
shown that they had never undertaken any specialist training such
as that offered by both the two main professional bodies, The
Expert Witness Institute (EWI) and the Academy of Experts (AE).
Nicholas Somers is Past Chairman
RICS Arts & Antiques Faculty and Member of the Expert Witness
Institute
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